Rafel Lectures on Long Term Disability Trends, including ERISA

By Bonny Rafel

For the ninth year in a row, on June 15, 2009, Bonny Rafel was an invited speaker for the American Conference Institute, who sponsored its annual conference focused on Disability Insurance Claims to an audience filled with insurance industry folk and claimants counsel. She presented a lecture on “IMEs, FCEs and Medical and Vocational Experts: Interpreting and Utilizing Testimony and Exam Results to Prove or Refute Disability”. Her central focus was to refute an outdated trend in the law and explain why disability insurance companies must adhere to their fiduciary duty to fairly handle claims.

For the past five years, insurers have repeatedly attempted to rely on their own in-house medical reviewers, vocational assessors, and peer reviewers to rebut the opinions of the treating physicians. Comfortable under the blanket of the US Supreme Court case of Black & Decker Disability Plan v. Nord, 538 U.S. 822; (2003), companies concluded that as long as there was some support for their conclusions, the court would not give the treating doctors’ views overwhelming weight. However, the need to present concrete evidence to rebut the conclusions of treating doctors remains a theme which continues to undermine any lasting impact of Nord. Courts almost universally recognize that a physician who has developed a long-term clinical analysis of the claimant should have the most insight to the claimant’s condition.

Who has the final say as to a claimant’s functional limitations? Is it the treating doctor, the insurance employee medical consultant or the physician who performs a single examination? How much weight will the court apply to a vocational assessment? Suspected company or examiner bias against finding a claimant disabled has become a key factor when reviewing support for a denial and is greatly influenced by a recent US Supreme Court case of MetLife Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008).
As long as the treating doctor keeps detailed records of his patient’s condition, notes restrictions and limitations and bases his opinions on an accumulation of medical data and clinical evaluations, his views on functionality should carry great weight.

Another topic worth mentioning is whether an IME should have been performed before a claim is denied. Lately, many courts have concluded that IMEs should have been performed either due to the complexity of the medical condition, or in light of strong disagreement between the paper reviewers and the treating doctors. There are many cases in which the court faults the companies for not having an IME when there are conflicting opinions regarding the functionality of the claimant. A recent case demonstrates that an IME was needed. In Schwarzwaelder v. Merrill Lynch & Co., Inc., 2009 U.S. Dist. LEXIS 19451 at *36 (W.D. Pa. Mar. 9, 2009) MetLife selectively considered the available evidence, relying upon the paper-reviewers over more detailed and consistent reports from the claimant’s three treating/evaluating physicians. The court noted that this practice was troubling, particularly as Metlife had discretion to supplement the medical evidence with an independent medical evaluation (“IME”), but elected to forego other personal evaluation of Plaintiff’s mental health.